*1 in such cases: the problem ascertaining damages decided, unlike at least one other court majority (Carroll 49-50, 415 Pa. 202 A.2d 11), that this Skloff not insurmountable it therefore difficulty was should not the creation of the cause of action preclude 371- (Chrisafogeorgis Brandenberg (1973), The existence and of the loss that 72). amount pecuniary the death of a accompanies fetus is always highly specula tive, however, and reliance on the will be heavy placed pre in of substantial loss most cases to sustain sumption awards. The decision this case majority regarding use me leads to conclude that presumption opti mism of the was unfounded. majority Chrisafogeorgis RYAN, C.J., UNDERWOOD, J., in this dis- join sent.
(No. 53482. ILLINOIS, THE OF THE STATE OF Appel- PEOPLE YATES, lee, v. LONNIE Appellant. 25, 1983. Rehearing
Opinion October filed 2, 1983. denied December *7 GOLDENHERSH, SIMON, CLARK, JJ., concurring and dissenting in
part part. and Defender, (Marc James J. Public of Doherty, Chicago Isaacson, and P. Assistant Public De- Fogelberg Robert fenders, counsel, of for and Thomas Brandstrader appel- lant. General,
Neil F. Hartigan, Attorney Springfield, (Mi- and Richard M. State’s Daley, Attorney, Chicago and Mi- Weinstein, General, chael B. Assistant Attorney Shabat, chael E. Joan S. and Thomas J. Murphy, Cherry, counsel), Assistant State’s all of Chicago, Attorneys, People. JUSTICE delivered the opinion UNDERWOOD court:
Defendant, information Yates, charged Lonnie 11, 1977, with a July in the circuit court Cook County of sections 9—1 and murder violation burglary, (Ill. 19—1 of the Criminal Code of 1961 Rev. Stat. 1). Following February ch. pars. 9— 19— offenses. The State trial he was found of both jury guilty to deter- sentencing hearing then a separate requested Af- mine the death should be imposed. whether penalty then deliberat- ter evidence and hearing argument, hours, same found jury some to 15 ing *8 existence of statutory aggravating factors and that there were no factors sufficient to mitigating the im preclude of the death The trial position penalty. court entered verdict, on the judgment death, sentencing and also an extended imposed sentence im years’ for the prisonment The death sentence burglary. the trial court stayed by (73 Ill. 2d R 609(a)) pending this automatic direct (Ill. VI, Const. art. appeal 4(b); sec. Ill. Rev. Stat. 1977, ch. 73 Ill. par. 4(i); 9— 2d R. 603). Defendant attacks his convictions and sen tences on numerous grounds, errors at each alleging stage of the proceedings.
On morning 1977, the July 17-year-old vic- tim, Lee, Veronica was bludgeoned and stabbed to death in her second-floor in the apartment city Chicago, where she lived with her mother, Samestine Yancy. evidence indicated that the assailant had gained entry the apartment by the screen removing on the rear door by removing square glass from the inner door. Mrs. had Yancy gone to work at 6:30 a.m. that morning, and at a.m., 9:30 approximately Veronica’s unclothed with body large scissors embedded in her chest was found in her bedroom closet her cousin, Lee, Timothy and his friend, Larry Moments Hope. before discovering as the body, men young approached second-floor on the landing rear stairwell of the building, they ob- man, served a whom later they identified in a lineup and in court as defendant, descending stairwell at a me- dium while pace, wiping his hands on a white handker- chief or towel.
An revealed autopsy numerous head lesions and nu- merous stab wounds to the arm; victim’s chest and scissors had her penetrated heart. Human blood was found underneath her Mrs. fingernails. iron was Yancy’s found blood-stained with a broken handle near her daughter’s body, Veronica’s set television was found on bed, radio, which,
her her mother’s it was later es- *9 tablished, had been located in another bedroom and before, dusted two was found on the kitchen days table its with cord around it. Veronica’s wallet wrapped was found with the contents a cocktail strewn about table. Mrs. testified that was Yancy approximately miss- $17 ing.
Defendant later, 15, was arrested four on days July at the home of a relative with he whom had been staying since 12. the trial court denied July Following hearing, defendant’s motion to his pretrial quash allegedly illegal arrest and to the suppress identification testimony thereof, Lee and the Timothy Larry as fruits a rul- Hope v. Payton which defendant here under ing challenges New York (1980), 573, 639, 445 U.S. 63 L. Ed. 2d 100 S. 1371. Ct. Payton
The State contends issue as as well other arguments defendant are presented by waived be- cause defense counsel’s failure to file any post-trial motions these alleged errors. The record incorporating indicates, however, that an oral motion de- post-trial nied, and the State does not assert otherwise. Although our statute that a motion for a provides new trial is to writing (Ill. be therefor Rev. specifying grounds 38, 1977, 1), Stat. ch. we have held par. previously 116 — that “a oral motion to general which State does not will for review all errors which object preserve appear in the record even not properly preserved though speci- v. Pearson People fied the oral motion.” post-trial Whitehead, v. citing People 210, 217, 88 Ill. 2d (1981), Flynn 501, 503-04; 35 Ill. 2d see also (1966), 116,119-20. (1956), v. New York Payton 573,
In 63 L. (1980), U.S. 639, 1371, Ed. 2d 100 S. Ct. Court held Supreme circumstances, the fourth amend- exigent absent ment, to the States the fourteenth amend- applicable (Mapp Ohio 643, ment 367 U.S. 6 L. Ed. 2d 1684), 81 S. Ct. from prohibits police making warrantless and nonconsensual into a entry suspect’s home in order to make an arrest. See also United States v. Johnson 457 U.S. 73 L. Ed. 2d S. Ct. 2579 (holding Payton retroactive).
Several witnesses were both the State presented by at the lengthy pretrial hearing, including: officers; four an assistant State’s Timo- Attorney; Lee, 17 at the time of the thy age hearing; Larry Hope, 21 at the time of the age hearing; defendant, who testified concerning circumstances his surrounding arrest and the station-house The offi- subsequent events. cers’ testimony concerning established investigation the following: Lee and Timothy who were Larry Hope, *10 interviewed after shortly the victim’s body was discov- ered, described man whom they had seen on the rear stairwell of the building as a dark complected 25 to 35 man, old black year with a mustache and a scar over his left eyebrow, 5 feet 7 approximately tall, inches 175 a pounds, wearing rust-colored suit. The witnesses also met with a artist who police sketch prepared composite which suspect subsequently the Chi- appeared cago police A department’s bulletin. crime scene daily technician the scene of the photographed crime, secured evidence, and physical dusted a number of areas and items, the radio including from which latent fingerprints were lifted.
On morning July police re- department ceived an anonymous call from a telephone woman who stated that Lonnie Yates was for the responsible murder of the young girl on Franklin caller, Boulevard. The who herself, refused to identify also stated that defendant’s wife’s name was Hatti Smith. After this information was related Officer Daniel one of the Darcy, investigating officers, he reviewed the unit files and discov- burglary
ered that defendant was on for a 1976 probation bur- The information glary. contained the file revealed that for burglary which defendant had been convicted oc- curred within a mile of Veronica Lee’s at apartment, ap- a.m., proximately and that had entry gained been by the window of a breaking rear door.
Later that afternoon, after for a arranging finger- print analysis, Officer was told Darcy police depart- ment fingerprint technician that a latent from the print radio was that defendant’s on file with the fingerprint police department. Officer then to the Darcy proceeded probation department and obtained the address of Hatti Smith from defendant’s file. The record reflects that Of- ficer and his Darcy partner located Hatti Smith between 5:30 after which p.m., she voluntarily accompanied the officers to the station.
During the subsequent interview, Hatti Smith told the officers that she was defendant’s girlfriend she had been to raise trying defendant, who money wanted to leave State. She indicated that she could determine probably defendant’s whereabouts by placing a few calls. The phone officers later heard Hatti Smith refer to the whom person she. had as Lonnie and phoned also heard her that she say had some but that money, she was scared because “it was hot around getting here.” She told the subsequently officers that she did not know the exact address but that she would out point the house wherein defendant was located.
Between 7:30 and 8 after Hatti Smith directed p.m., *11 Street, the officers to a house on LeClaire the officers a drove short distance to a booth and directed her phone defendant. Meanwhile several again phone officers minutes, drove back to the house. After a few Officer William Frost radioed from the booth defend- phone ant on the inside the house. officers telephone stationed in front of the then the front house approached
515 had arrested Cronin, who Michael door, and Officer defendant occasions, saw two previous on gates the burglar Because door. through opened immediately door, Cronin on this Officer secured were the house door, placed entered a side went arrest. defendant under from the it is clear position, to defendant’s
Contrary his arrest cause developed that once probable record no whereabouts, there was his ascertained and the police a warrant which during delay or unjustified deliberate 97 (1983), v. Winters obtained. (People could have been 159, 170.) 2d 81 Ill. 151; Abney (1980), v. People Ill. 2d as relevant identified factors have been several While exist, circumstances exigent whether determining case must reasonableness, and each is guiding principle the officers of the facts known to on the basis decided be (1982), Eichelberger acted. v. (People at the time they 159, Ill. 2d 359, 370; Abney (1980), People Ill. 2d 378, 395; (1983), v. Free 173; see also 204, 221, 68 451 U.S. v. United States Steagald 1642, 1652, and United 51, 101 S. Ct. 38, L. Ed. 2d 42-43, 49 L. Ed. 38, v. Santana U.S. States 2406, (“hot pursuit” 2409-10 96 S. Ct. have considered the factors that been Among fugitive).) situation a exigency particular useful judging involved, is particularly offense (1) grave are that: believed violence; (2) reasonably the suspect crime armed; showing probable there exists a clear (3) to be that the sus reason to believe cause; strong there is (4) likelihood the sus is in the there is a (5) pect premises; (6) if not swiftly apprehended; will pect escape nonconsensual, is made peaceably. though police entry, F.2d 1970), 435 States Cir. (D.C. United (Dorman factors consider these we (en bane).) Although 392-93 other with several in accord relevant, we emphasize, uti- should be the Dorman principles jurisdictions, *12 516
lized as only guidelines, not as cardinal maxims to be (E.g., State v. Page (N.D. in each rigidly applied case. v. People Jones 112, 117; 277 1979), N.W.2d (Iowa 1979), cert. denied 273, 275-76, 274 N.W.2d (1980), 446 U.S. United States v. 907, 259, 64 L. Ed. 1833; 2d 100 S. Ct. Acevedo cert. denied (7th 68, Cir. 627 1980), 70, F.2d 449 1021, 482, U.S. 66 L. 2d S. (1980), Ed. 101 Ct. 587.) Indeed, as indicated, some courts have circum exigent stances well exist there a may where serious only crime with coupled reasonable of imminent possibility to life, serious danger destruction of damage property, v. flight. E.g., State evidence, or the likelihood of Lloyd Weddle v. 61 505, 513, 918; (1980), 913, Hawaii 606 P.2d State v. Ramey 231, 240; 621 (Wyo. 1980), P.2d 16 (1976), 263, 276, 1341, Cal. 3d P.2d 1333, 545 127 (en cert. denied banc), 629, Rptr. Cal. 429 929, U.S. 50 L. Ct. Ed. 97 S. 335. here were police investigating murder, a brutal
and, demonstrate, as facts there was a clear showing to believe probable cause defendant was responsible. addition, In was there evidence that strong suggesting defendant would if not likely escape swiftly apprehended since his indicated she girlfriend raising was money State, him to enable to leave the and the thereaf- police ter overheard what have inter- they might reasonably as a preted defendant hot tip-off police were on his trail. the arrest made at a reasonable Finally, that, hour in the and the evening, evidence indicates was made circumstances presented, entry no the offi- why a reasonable manner. We see reason cers should have conducted a surveillance house obtained, as while a warrant was defendant being urges, and arrested on the had he attempted street had there to leave. Given defendant’s probable flight might been further such a course of action any delay, a violent well have increased risk of unnecessarily of- the lives of the endangered confrontation and further (N.D. as (See Page ficers as well State any passersby. 112; N.W.2d 276 Or. 1979), State Girard Cir. 445; Campbell 555 P.2d United States v. (2d 1978), 581 F.2d 26; 2 W. LaFave, Search & Seizure 6.1, sec. 395 (1978) at of whether stake- (“the question *13 out is or is not feasible itself a one, is and is complicated to be seen unlikely by hindsight in the same precisely it the way perceived was on the by scene”).) We conclude that the trial accordingly court found correctly no constitutional in infirmity defendant’s warrantless ar- rest.
Defendant contends that because of the use of State’s its he was of peremptory challenges his consti- deprived tutional under the sixth rights and fourteenth amend- ments to a a cross-section of com- jury representing He asserts that munity. State used 13 of its 16 to peremptory challenges during voir dire excuse blacks. (Defendant black, victim.) as was the At the of time trial, it clear at was that least one black sat on first of the jury venire to be examined trial by —the court; of the race another juror was unclear at that time. a evidence in Subsequent post-trial hearing on defend- ant’s motion for the of that purpose establishing only one black sat on the juror indicated that the other jury in was not question probably (The juror black. indicated that his in Mexico, mother born he his fa- identified ther his State only origin, of but the considered juror white.) himself
We consider that our recent decisions in v. People (1983), 252, Williams 97 Ill. 2d People v. Davis 1, Ill. 2d (1983), 95 are also dispositive. (See People (1983), 99 Ill. In Payne 135.) light 2d of our treat- ment of the issue in cases, those an extended discussion here is It held, is sufficient note that unnecessary. we courts, accord with the that overwhelming majority
518 202, 13 v. Alabama 380 U.S. L. Ed. 2d (1965), Swain 824, au- 759, continues be the controlling 85 S. Ct. systematic exclusion thority: only purposeful case, from the in case after raises a constitu- jury, blacks 202, 380 (Swain tional v. Alabama U.S. (1965), question 824, 223, 759, 774, 837; L. Ed. 2d 85 S. People 13 Ct. 273; 252, v. Davis (1983), Williams 1, Ill. 2d and defendant has (1983), 16), 95 burden exclusion establishing evidence producing systematic Ill. 1, 16).We rejected v. Davis also (People Court, in here that the presented Supreme argument L. Ed. 2d v. Louisiana U.S. Taylor from earlier We holding. 95 S. Ct. retreated its nature of the Tay- indicated in Williams that limited Supreme lor was clear. As the Court stated: holding that emphasized holding “It should also be fairly represent- must from a petit juries be drawn source community requirement we no impose ative community mirror the petit juries actually chosen must jury any particu- Defendants not to a ***. are entitled wheels, *14 [citation]; pools lar composition jury but the names, juries or from which are drawn panels, venires in the groups not exclude distinctive systematically must thereby reasonably and fail to community representa- be 522, 538, 690, 702- (419 tive thereof.” U.S. 42 L. Ed. 2d 03, 692, 702.) 95 S. Ct.
It is the does clear that evidence presented by not the Swain standard. satisfy was contention that he
We consider next defendant’s is, of a doubt. It not reasonable proved guilty beyond the re have course, recognized, jury’s as we repeatedly assess the credibil disputes, to resolve factual sponsibility the and suffi witnesses, weight of the and determine ity 1, v. 95 Ill. 2d (1983), of the evidence Davis ciency (People v. 27; 583; People v. Carlson 79 Ill. 2d (1980), People not 374, 387), 52 Ill. its will judgment Clark 2d (1972), im- or unsatisfactory unless the evidence so be reversed 519 that a reasonable doubt as to the of defend probable guilt 309, 315; ant 93 Ill. remains. Williams 2d People 129, 151, Lewis cert. denied 1308, 102 73 2307. (1982), U.S. L.Ed. S. Ct. mother, Mrs. she the victim’s testified that had Yancy, arisen work at a.m. on the 1977. morning July bedroom, As she ironed her in her clothing she daughter’s conversed with her who dressed in a daughter, night- She gown. identified the iron found near Veronica’s body. She had left it the on board in the ironing bedroom with its handle intact. The scissors used to kill Veronica were on cabinet, and the radio had been on a table in Mrs. Yan- the cy’s bedroom. Both screen and the window of rear door were a.m., intact. When Mrs. left at she Yancy 6:30 Veronica, instructed in accordance with her apparently custom, usual to lock the door, front and she out- waited side the door she until heard her daughter do so.
Both Lee and Timothy Larry Hope identified defendant in a trial lineup and at as the man whom had con- they fronted on the stairwell on the Both day murder. testified, witnesses with minor to the discrepancies, follow- ing: a.m., witnesses, after 9 shortly who search- were for a ing job, went to visit Veronica borrow carfare. When at they arrived called building, they out Veroni- times, ca’s name several but there was no response. They then threw at pebbles windows, one of her Tim- practice had used on several othy occasions to previous gain his attention, cousin’s when the outer at apparently door front of the building was locked or the not doorbell was op- erating. this time the During witnesses heard screams from the but could isolate building, they not a particular apartment thought screams were those of a child being After outside for physically disciplined. standing minutes, men went approximately young rear *15 climbed the stairwell and building, met defendant descending from the floor second while his hands. wiping
Defendant bumped into at which Timothy, point Timothy testified were “face they staring face”; said, me,” “excuse and continued down the stairs at a medium When the pace. witnesses reached the Lees’ apartment and saw the condition of the screen window, and Timothy immediately began chase defendant him but lost at the Meanwhile, end of an alley. Larry gone had into the apart- ment and discovered Veronica’s When re- body. Timothy that, turned, Larry, shaken, who was him visibly informed his cousin was dead. The were notified and arrived thereafter. shortly Brown,
Anna Jean who occupied third-floor apart- ment Lees, above the directly testified that between 9 a.m. and 10 a.m. on the morning she heard Veroni- July ca’s cousin the front of the out building calling Veroni- ca’s name. She walked down the front stairs and knocked on the Lees’ door. When there was no answer she re- her turned to She then apartment. went to her rear out- side and porch conversed with her next-door neighbor. on the she porch, While heard Veronica’s cousin coming up She stairway. looked over the bannister and saw a man down the proceeding dressed in an gangway orange two- suit. She testified that the man piece pant was dark com- old, 30 to 35 feet plected, years 6 inches or 5 feet 7 tall, inches weighing She approximately pounds. did face, however, not see his was unable to consequently make an identification. Patterson,
Officer Theatrice who had been a fingerprint examiner for over 13 and was as an ex- years, qualified testified that he examined two pert, partially overlapping, identifiable which fingerprints were lifted from the radio inside the Lees’ found A apartment. police department lab technician had photographed prints, negative, which was as a “one to one of the actual explained print itself, one size,” to one actual was used for being compari- son These as well as the inked purposes. prints, impres-
521 were sions of with which fingerprints, they compared, were for of purposes. later demonstrative Two enlarged enlargements the State's testified that of latent experts lose are for a often and not used prints clarity comparison. of Officer Patterson testified that one from prints the radio was Mrs. and the other was Yancy’s, print examinations, In two defendant’s. the officer separate charted 19 of points comparison between lifted print and the inked of left impression defendant’s thumbprint; there were no dissimilarities. The that, officer stated while there is no standard minimum of points number required, more than of points comparison is never an required for identification. Kluth,
Officer Herman also as an fin- qualified expert gerprint analysis, corroborated Officer Patterson’s find- that, He testified ings. examination, upon based his one the latent lifted from fingerprints the radio was defend- ant’s. He at charted least points of comparison, spot at which he when ordinarily stops making corroboration.
The balance of the State’s case included from testimony several officers, the police and a pathologist, microanalyst, evidence. That evidence need not physical be detailed here.
Evidence adduced included testimony from Norton, John a retired examiner from the fingerprint who Chicago department, had trained one of the police State’s was experts who also as an qualified expert. He Norton, had been so for 22 Mr. al- employed years. that the though maintaining characteristics should be iden- tifiable on both a con- good blowup size, and the one-to-one ceded that the latent from the radio blowup print which he used was not the method com- proper making Use parisons. stated, of the one-to-one he his was print, standard he while was with procedure police depart- ment, and were used blowups pur- for demonstrative only had, poses. however, He State’s declined the request make such an examination at the lab. In Mr. Nor- ton’s 10 to 12 opinion, points are comparison necessary identification, an and he was able to chart three or only four between the points photo enlargements of the lifted and defendant’s inked print impression. rebuttal, Buhrke,
In the State called Burton also an ex- in fingerprint Buhrke, Mr. who had pert analysis. trained Mr. Norton and who that Mr. considered Norton’s reputa- that, tion in the community good, testified based very examination, his the one-to-one lifted from the upon print more, radio was defendant’s. he found he Although *17 charted of only points between the lifted comparison and defendant’s inked print which he consid- impression ered “very, very conclusive.”
Defendant contends that identification testimony Lee and is entitled to little Timothy Larry Hope be- weight had, confrontation, cause at the time of the they neither reason to the man nor remember saw sufficient they op- to Further, observe him. he that the portunity argues wit- nesses’ was at trial and that credibility impeached they were influenced their by previous “unreliable” iden- lineup tification. The was lineup conducted under less than ideal circumstances because defendant’s refusal to deliberate with the Defendant concedes that what- cooperate police. ever infirmities existed were to attributable his own misbe- but, nevertheless, havior submits the witnesses’ in- court was, identification as a result of the lineup, unreliable. do not inherently agree. We The that, record indicates at the time of defendant’s ar- rest, he was dressed in short and only pants wearing shoes. officers observed four scratches on defendant’s left about one inch bicep which because of apart appeared, scabs, formed to be recent. Their at- partially relatively to frustrated, the scabs were the testi- tempts photograph indicates, constant and mony defendant’s movement action in Later that his hands over the scratches. placing after defendant was taken into and evening, custody ques- murder, tioned Lee’s he was advised concerning Veronica to The officers had that a be conducted. lineup going intended to a shirt and long defendant with both provide he however, when informed defendant they pants; shirt, would be a he that “he wasn’t given responded going to on a shirt and he wasn’t to stand in a put going f-ing The officers then told the other four men chosen lineup.” for the who were to also remove their lineup, custody, shirts. After however, defendant’s hearing response, they refused, that if not on a indicating defendant would put shirt, would not remove their shirts. To they avoid physi- cal confrontation in the which the officers lock-up, appar- thought was had ently likely forced they compliance, after consulting with an assistant State’s Attorney, they defendant in the placed without a shirt. The men lineup bench, were seated on a and the witnesses viewed the from a lineup separately location which precluded view the lower portions bodies; the men’s consequently they were to unable observe that defendant was the man only short wearing pants. During lineup, pro- ceeded in a engage number of tactics which drew atten- tion to times, himself. At face, various he his covered over, leaned around, moved attempted stand up, mumbled.
It defendant, seems evident that who was not unfamil- iar with the criminal justice sought to or system, destroy the of an impair reliability would, identification. It how- ever, be little short of ridiculous to that hold because defendant’s misconduct during focused attention lineup him, the upon of a integrity in-court identifica- subsequent tion was where that in-court impaired identification would otherwise be One of the satisfactory. reasons for principal is to lineups protect from misidentification and suspects the release of promote early Where, innocent as persons. here, the record shows that the witnesses an adequate had to observe defendant on the of the
opportunity morning identification, murder and make a in-court the positive defendant will not be its permitted challenge sufficiency of his own because misbehavior. v. Broadnax People 68, 73; 23 Ill. see App. Appeal Maguire (1st Cir. 571 F.2d 1978), cert. denied 436 U.S. L. Ed. 2d 98 S. 2249. Ct.
Defendant also contends that the witnesses’ de- prior to the and the scription suspect police composite sketch drawn at their direction their “seriously impeached” contention, identification This like the testimony. lineup challenge, The record indicates completely unpersuasive. the dissimilar characteristic the only between wit- nesses’ rather detailed verbal to the description the and defendant a minor suspect was variation. height The witnesses stated that the suspect approximately tall, record, feet 7 inches in the evidence while cer- conclusive, not seems to indicate that defendant is tainly between 5 feet 9 inches and 5 feet 11 inches tall. In con- trast, the witnesses ap- described defendant’s accurately moustache, tone, skin hair proximate age, weight, style, and scar above his left The dissimilarities between eye. sketch, defendant and the drawn art- composite by police ist who testified his sketches resemble the person ap- time, one-third of the were more prehended only marked. witnesses, however, Both testified that had told the they artist that sketch was not accurate or did not look like stairs, the man on saw while the artist testified they that to the best of his recollection his interview with ended witnesses when were satisfied with the draw- they ing.
It has that where the emphasized been evi- repeatedly it dence is is the conflicting, peculiar prerogative truth, trier of fact court reviewing to ascertain and a in- not substitute a different on may judgment questions of the witnesses. volving credibility (E.g., *19 525 490, 505; v. (1977), 92 Ill. 2d Manion (1982), People Kline L. 564, 578, 937, denied 435 U.S. 55 (1978), 67 Ill. 2d cert. 533, 1513; 45 Ed. 2d 98 S. Ct. v. Hammond People (1970), 269, extent that identification testi 278.) Ill. 2d To the the be might thought of Lee and mony Timothy Larry Hope defense with the of have been counsel use impeached by artist, the sketch and the it was testimony the to assess its v. jury’s responsibility impact. (People 286, 74 Ill. It is clear that the (1978), 306-07.) Berland 2d witnesses were in their in-court unequivocal identification defendant, of and the with obviously was jury impressed the of that strength testimony. defendant also
While attacks the of credibility State’s it is dis- fingerprint experts, evident the jury counted the who testimony defendant’s conceded expert, not he did use the fin- proper method his making gerprint comparison. heard from jury testimony both concerning sides whether as blowups were fingerprints as suitable for the one-to-one im- comparison photos and and, pressions, again, it was its responsibility judge of the witnesses and to credibility ascertain truth. issue,
Where identification of the is at accused the testi- of a single witness sufficient to a mony support convic- tion, in the even presence contradictory alibi testimony, provided the witness is credible and viewed under circumstances a which would permit positive identifi- cation. v. (E.g., People (1981), 134, Tate Peo- 148; 564, v. 67 ple 578; Manion Ill. 2d v. (1977), People 52 2d Stringer (1972), Furthermore, Ill. 568-69.) conviction will be sustained on the basis of solely finger- evidence, where print a defendant’s are fingerprints found in the immediate of the crime under such vicinity circum- stances toas establish beyond reasonable doubt that the were fingerprints at the time the impressed crime 249; committed. Ill. (People Rhodes 85 Taylor Ill. 2d (despite of other on window “smudged” fingerprints presence burglarized apartment, unexplained presence of a *20 is not consistent with reasonable any hy defendant’s prints of see also v. Malmenato innocence); People pothesis 52, 899, 3 L. (1958), 14 Ill. 2d cert. denied 358 U.S. (1958), 148, It here that the tes 222.) Ed. 2d 79 S. Ct. is apparent of Lee and defend timony Timothy Larry Hope identifying ant as the man saw the immediate of fleeing vicinity they ex crime, the and the of the State’s testimony fingerprints that defendant’s was found establishing fingerprint perts the other evi inside the victim’s with apartment, together record, in the more than sufficient to establish dence were a doubt. v. Wil guilt People defendant’s reasonable beyond 1, (identification testimony 12 (1975), liams fin damaging with relevant and supplemented witnesses defendant a beyond evidence gerprint clearly proved guilty reasonable doubt). that it error for the
Defendant
was reversible
argues
sketch,
to
the
artist’s
trial court
to refuse
admit
police
the iden-
offered for the
purpose
impeaching
which was
Lee and
Timothy
Larry Hope.
tification testimony
excluded be-
properly
State
that
the sketch was
submits
for
not
a
foundation
proper
cause defendant did
establish
admission,
that,
and
its exclusion was
alternatively,
its
have
harmless
a reasonable doubt. While we
not
beyond
addressed the
the circum-
question concerning
previously
under
sketch may
stances
which
be admissible
composite
the converse of this situation
impeachment purposes,
P.2d cert. denied 385 U.S. 17 L. Ed. 2d 218, 87 S. Ct. 305) more difficult for resolu question tion concerns the evidence establish necessary proper foundation, a upon Rogers particu which is not question larly instructive.
The rule from our court emerging decisions appellate that the must the evidence show that witness previously adopted the as an the drawing accurate sus portrayal As the court in pect. appellate Schmitt Ill. 184, 187, App. aptly observed:
“If the rule were otherwise did not the require and wit- ness to the an adopt drawing as accurate an portrayal, inept artist cause to a impeached by could the witness be drawing given did not the by which reflect description witness, the though description even that have been may words, accurate. In a drawing other the artist could make witness, a that was not likeness it the and attribute to without the that it having opportunity say witness’ the to did, not, or did look like the It alleged perpetrator. is also conceivable that skillful artist could use Identi-kit the yet technique produce Recog- and be unable to a likeness. nizing that limitations in the proce- do exist Identi-kit dure, we it precedent whereby deem unsound to set a such adoption sketches could be admitted without prior by and confirmation the for person primarily responsible identification.”
The State, seems relying upon suggest to Rogers,
the
witness
identification
must
court
au-
testify
as to the
of the
while
thenticity
accuracy
drawing,
seems to
that the
suggest
mere existence of the drawing
which was
the
pursuant
prepared
description given by
the witness would be sufficient
its
for
admission. Neither
view,
us,
it seems to
identifies the
in-
correctly
relevant
In
the sketch
quiry. Rogers,
being
used to corroborate
the in-court identification
of the
so it
testimony
witness,
that the
follows
witness was
necessarily
required
testify
as to the
the
description,
of the
prior
authenticity
drawing,
and that it accurately
Where,
the
how-
portrayed
suspect.
ever, the
is used for
sketch
as a
impeachment purposes
inconsistent
in-
prior
description
assailant,
the
a simple
court denial
the witness that he
by
previously adopted
as an
drawing
would,
accurate
un-
subject
portrayal
der the State’s theory, preclude
It is thus
impeachment.
ap-
that,
parent
where
has been
testi-
established,
authenticity
from
mony
who
the sketch
also
person
prepared
which
establishes
identification witness previously
it
adopted and confirmed
as an accurate
is suffic-
drawing
ient
foundation
its admission
despite
denial
witness that he
to its
That
identifying
had agreed
accuracy.
is,
denial or an
from the identification witness
explanation
course,
in the
admissible
relevant
assessment
jury’s
is,
fact,
of the extent
to which
drawing
impeaching.
concerned, however,
We are
with
addressed
problem
in Schmitt
these
inherent
limitations of
regarding
sketches,
when the
is uti
Identi-kit
particularly
procedure
lized.
we deem
une
it advisable to
Consequently,
require
from the
artist that the
quivocal testimony
drawing
*22
not
at
of
only
representation
was a
the direction
prepared
the witness,
that the
after
an
witness,
having
op
but
had
sketch,
the
it as an
portunity
completed
adopted
view
of
accurate
the
See United States
portrayal
suspect.
282, 284-85,
Cassasa
588
denied
(9th
1978),
Cir.
F.2d
cert.
379,
441
L.
U.S.
Ed. 2d
Defendant v. Bernette argues, citing People 359, that he denied a fair trial “when the prose Ill. 2d was that the deceased’s to the attention brought jury’s cutor However, alone” the murder. mother was left to live by record, there was no objec of the to which quoted portions that of the tion, lend no to the contention evidence support for its value solely prejudicial deceased’s was elicited family it had such an Mrs. tes impact. Yancy simply or that even were the only that she and her Veronica daughter tified she that lived in the after which estab apartment, people facts, certain to which she could For ex testify. lished only certain found in the apartment she identified items ample, when she left that testified their location concerning the condition of the concerning she testified morning; that was from her missing doors and established money Further, was admitted for waUet. her daughter’s testimony the identification of dece establishing the purpose those (People dent. It was admissible for plainly purposes. 413-15; v. Brown 378, 94 Ill. 2d (1983), Free sense tells us that 303.) 30 Ill. 2d “Common that, in most murder victims do not live a vacuum v. Free cases, (People leave members.” they family behind revealed to the 415.) jury The State case, to establish its and we no more than was necessary find no impropriety. error for the
Defendant that it was reversible urges be- introduce evidence of his 1976 fingerprinting State to arrested. that he had been previously cause it disclosed ad- the officer took the was prints The who testimony of the for the testimony mitted to establish a foundation comparisons. who made fingerprint experts State’s and the had fingerprinted State again made two comparisons testified that they witnesses expert the inked impressions latent with each of of the print indicated, As we have previously defendant’s fingerprints. vigorously disputed evidence was the State’s fingerprint counsel defendant: not attacked only suitability latent also sug but elicited print comparison, testimony that amount gesting depending upon the of pressure placed aby making when an inked it was person impression, pos sible for an occur. It clear to us apparent discrepancy which officer testimony necessary establish two were made two comparisons based upon *24 different inked of defendant’s was impressions prints v. relevant People highly (See and admissible evidence. Free 378, note, 94 Ill. 2d (1983), 412-13.) too, We as the out, State points that officer’s in following testimony which he indicated that he simply had fingerprinted defendant, there no were either references or indi directly arrest, to a rectly previous and did not jury view 1976 card. if it fingerprint Finally, even could be said that the State should its presented have case without reference to the date defendant was fingerprinted, possibility that this evidence defendant too prejudiced entirely spec v. ulative to be viewed as People Warmack error. reversible Ill. 112, 83 2d 128-29 (1980), (admission of defendant’s mug bearing shot an date to arrest the offense in prior question harmless; was somewhat allegation prejudice specula v. People Butler tive); Ill. (1974), 45, 2d 49 (vague and indirect reference to arrest previous for murder held to harmless; be possibility of an effect on the was jury specu lative).
Defendant’s final of error in the allegations trial itself concern the closing arguments. He contends the trial court limited argument defense counsel’s improperly that certain prosecutorial remarks denied him a fair trial. cites Defendant four allegedly improper comments by prosecutor, only one which was thus objected v. People Jackson for review. properly preserved (1981), Ill. 2d 358-59. the State’s
During argument, rebuttal assistant State’s stated: Attorney
“Now, let’s look at the evidence in the case. This is the strongest you one of cases that will ever see or hear about— Objection.
[Defense Counsel]: following State’s —for the rea- Attorney]: [Assistant sons: There are— Objection, Judge.
[Defense Counsel]: THE COURT: Overruled. State’s There are Attorney]: people five
[Assistant who have directly puts testified this case that this ***” man, now, 32-year this old man at that location. We do not that the agree above prosecutor’s argument an expression his as to improper personal opinion guilt. (See, defendant’s v. Monroe 66 Ill. e.g., People (1977), 317, 323-24; v. People (1948), 399 Ill. 65.) Hoffman It is that the on the apparent prosecutor, commenting of the State’s strength case, limited himself to the solely evidence, and we his comments as regard permissible argu- ment. People 303, 319; Tiller 94 Ill. 2d Burnett 517.
Defendant contends that it was reversible error for the prosecutor suggest attacked the sexually *25 deceased without evidence to that The any support theory. comment to which made, defendant refers was without ob- the jection, recreate, while was prosecutor attempting evidence, the the upon based events inside the probable victim’s stated that it was apartment. prosecutor pos- sible that while defendant was the burglarizing apartment, the him, victim and “it that surprised possible during [was] this course of time the defendant decided to some satisfy other sort of need, some other desire.” That explain, would said the the was found prosecutor, why victim unclothed when she was last seen her mother by wearing night- and also defendant had scratches on his arm gown on why the In this day his arrest. our judgment, argument inferences from the facts and cir- upon legitimate based cumstances and was not See v. proved, improper. People 514, 526; Better 74 Ill. 2d v. (1979), People Wright (1974), v. 50 Ill. 2d 523, 531; Higgins (1972), People 56 Ill. 2d 228. and the State additional complain
Both defendant Some closing arguments. of the other’s portions not to and do challenged objected statements now were circumvention not rise to the level of error plain justifying v. 84 Ill. 2d (People (1981), of the waiver rule. Jackson It that error is so 358-59.) plainly must be apparent an denied or that the ver- that real has been prejudicial justice from the error dict of the have resulted before jury may error (See, People the rule be invoked. plain may e.g., 564, 577; Carlson 73 Ill. 2d R We 615(a).) examined the rulings, have complained-of arguments which include an undesirable comment as prosecutor wife, to what he would have done had the victim been his as well as sustained objections to and unwar- unsupported ranted defense accusations of improper police prosecu- torial misconduct, and do not regard them as prejudicial. the trial court Clearly correctly defense counsel precluded from representing was, his argument at the time of the unaware of the lineup, reason for his arrest when defendant’s own testimony during pretrial pro- ceedings established that he knew reason for his arrest well before time of the See lineup. Payne 98 Ill. 2d 45.
Defendant’s contention remaining is that the trial judge him improperly prevented from telling there jury was no evidence of a confession or admissions him linking to the murder. Defendant out that points trial judge had denied the pretrial motion to certain suppress state- ments which were arguably incriminating and that State chose not simply to introduce those statements. However, the court also allowed the State’s motion to pre- clude defendant from to other referring self- exculpatory serving statements, a which is not ruling here. challenged While defense counsel’s argument which an objection
534 may was sustained well have been we permissible, do not its here regard exclusion as reversible error. The absence of a any evidence of confession would have been obvious to
the jury, whether not, mentioned counsel or by we can- not agree defendant was the court’s prejudiced by rul- From our review of ing. the entire argument, we closing conclude that defendant was not denied a fair trial.
Defendant challenges his death
on a
sentence
number
grounds,
first which is that he was penalized for
exercising his constitutional
to a trial. His contention
right
in this regard is almost identical to that which we rejected
People
in
v.
Ill.
(1981),
129,
Lewis
2d
cert. denied
(1982),
1011,
456 U.S.
2d 1308,
L. Ed.
535 3,000 of to proceedings prior the almost throughout pages verdict, it the is clear that defendant realized guilty the seek the death in the event State would penalty State from the seeking conviction. The was not precluded offer, death after defendant its rejected penalty pretrial nor do these facts establish that defendant was penalized to a trial. right People his constitutional exercising jury Ill. 129,148-49. Lewis 88 that,
Defendant if at argues even excluded properly trial, the sketch the artist by composite prepared should have admissible at He sentencing hearing. been the sketch suggests was relevant to the mitigating factor of In whether “defendant be innocent.” view might fact that had jury already adjudged defendant doubt, a reasonable it is that the guilty beyond obvious was not sketch relevant issue composite any before at the jury sentencing It was excluded. hearing. properly Nor trial did the err in judge holding inadmissible testimony numerous defendant intended experts whom to call at the sentencing Defendant intended to hearing. present ministers, wardens, testimony theologians, professors, none of were politicians attorneys, whom with personally defendant. The witnesses would acquainted have testified concerning and ethical attitudes to- religious ward the death the nature of execution in the elec- penalty, chair, tric and that death was not a penalty deterrent: held, As the trial court none of evidence correctly this would have been relevant to whether fac- any mitigating tors case, existed in this and it was thus excluded. properly 252; Williams Ill. 2d Lockett v. (1983), 97 see Ohio (1978), n.12, 438 U.S. 57 L. Ed. 2d n.12, 98 S. C.J., Ct. 2965 n.12 (Burger, joined & Stewart, Stevens, Powell JJ.). however,
We do with defendant’s contention that agree, portions the sen- prosecutor’s closing argument at tencing were so as to hearing prejudicial per constitute se
reversible error. While the State some attempts justify of the prosecutor’s more egregious comments as invited re- or ply error, characterizes them as harmless it is clear to us that cannot be so they regarded.
In rebuttal closing argument, the assistant State’s At- stated: torney
“So when risks, talks about he talks [defense counsel] about putting Listen, the risk of away a man. somebody else going to be found to have done something like that, guy. the real What kind of nonsense is that? On this that you evidence had there is no other There guy. is no innocent guy. know,
You he did it. You already found it. As a mat- *28 fact, ter of it beyond is not a reasonable doubt on this ev- idence. There is no Prints, doubt that this man is guilty. two eyewitnesses, and the other circumstances in the case. No doubt this man is guilty.
But, what, tell I you will take that risk. If somebody does come forward a years number of later and I says did it. Of course that really mean anything, Under Okay. [sic] these circumstances here. You blame me for that. You blame me if he is I unjustifiably convicted. would take all the responsibility for that myself. Objection. It is the jury's respon-
[Defense Counsel]: sibility.
THE objection sustained, COURT: The will be and the jury will be ordered to disregard the comment of counsel as to his shouldering responsibility, the impo- sition of the death penalty.” The then prosecutor continued:
“But thing one that I will not ask that will have you for, the responsibility ladies gentlemen, and then I am not going for, to take any responsibility if send you this man to the I penitentiary only and mean this re- with spect to everyone you. you If send him only pen- itentiary, which I don’t think you should do. Objection.
[Defense Counsel]: State’s Which I don’t think the Attorney]: [Assistant — facts and the law would make sense under any facts and law here.
THE COURT: Overruled. I If do that am not Attorney]: you State’s
[Assistant going responsibility somebody— to take if Objection, Judge.
[Defense Counsel]: Attorney]: guy State’s lets this out. [Assistant Objection, objection, objection. Counsel]: [Defense period In a Attorney]: State’s short [Assistant time. jury Ask the instructed to dis- be Counsel]:
[Defense regard that. disregard
THE is jury COURT: instructed being remarks of counsel as to his let out of the peniten- tiary. you. Thank Counsel]:
[Defense Attorney]: State’s And commits another [Assistant crime. Objection. Ask that counsel be ad-
[Defense Counsel]: monished to discontinue argument. that line of THE The objection COURT: is sustained. The jury *** to disregard instructed last remark of counsel. The Court is directing that you any abandon further pur- suit this line of argument.”
The State insists that the did not tell the prosecutor that he jury assume would responsibility imposition the death but penalty, only advised the he would jury take if defendant had responsibility been unjustifiably con victed. The trial judge obviously counsel’s re interpreted otherwise, marks it is evident that either argument Nor entirely improper. can we the State’s accept posi *29 tion that the prosecutor’s argument was a legitimate re to defense sponse counsel’s in which he told argument the that jury death was irreversible and that there was always the that an possibility innocent man would be executed. The prosecutor legitimately to that responded argument by the that telling jury they had found already a guilty beyond reasonable doubt. This court’s opinion in v. People Polenik (1950), 337, 349, 407 Ill. is apposite. In a murder reversing a conviction, sentence, death vacating and for a new the remanding trial, “It is court held: be- the to that argument respon-
yond
scope
proper
suggest
for a verdict of
or a death
be
sibility
guilty
penalty may
not
the State’s
The
avoid
upon
Attorney.
may
placed
jury
its
the word of
the
to form
own conclusion
duty
by taking
on the
or
re-
the
matter
defendant’s
prosecutor
guilt,
by
it
have
the State’s
any doubts
solving
may
by considering
to assume
Statements
Attorney’s willingness
responsibility.
it to do
are
and
improper
or
so
suggesting
inducing
clearly
Black,
v.
While
by
remark,
to
the
an
ordi
structing
jury
disregard
improper
79 Ill. 2d
(People
(1980),
correct the error
v. Carlson
narily
the
564, 577),
prosecutor
believe that
remarks of the
we
and
that
clearly
they
here were so
prejudicial
improper
(See
an admonition to the
Peo
by
jury.
could not be cured
391;
Polenik
(1963),
People
Garreau
ple
337, 347.)
disagree,
407 Ill.
some
Although
may
is
to
the ultimate
and
penalty,
death
be
generally regarded
leg
is
the result of its execution
irreversible.
certainly
use
limited
quite
group
islature has restricted its
to
the
for its
cases, and
responsibility
imposition
vested
or
That
cannot
sentencing
unique responsibility
jury
judge.
the
indica
shared,
or
effect
statements
delegated
be
us, cannot
as
such as those before
be
contrary,
ting
an instruc
eradicated
completely
sumed
have been
argument
them. The
so
disregard
to the jury
tion
of responsibil
to diminish the
sense
jury’s
served
obviously
of its decision
consequences
serious
mitigate
ity
comments
improper
when combined with
other
that,
See
hearing
required.
herein,
sentencing
a new
noted
We conclude accordingly that the prosecutor’s closing argument improperly diverted the attention from juiy’s consideration of the relevant aggravating and mitigating factors in the death penalty and hearing dimin seriously ished the sense of jury’s This court’s responsibility. obliga tion to insure both high procedural standards and to con fine sentencing hearings to proper and aggravating factors mitigating that, in requires circumstances, these which are substantially more prejudicial than those in Peo v. ple Davis 95 Ill. (1983), 1, 48, 2d we vacate the death sentence and remand for a new sentencing hearing. People v. Davis (1983), 1; 97 Ill. 2d People Walker 91 Ill. 502, 517; see also Lewis 164-65.
Defendant’s convictions for murder and are af- burglary firmed; the judgment defendant to 14 im- sentencing years’ prisonment affirmed; burglary sentenc- judgment ing defendant to death is vacated, and the cause is remanded to the circuit court of Cook for a County new sentencing hearing. in part vacated
Affirmed remanded, in cause part; with directions. GOLDENHERSH, JUSTICE concurring part dissenting part: I
Although -with agree Justice Simon er- prejudicial that and remand for a requires judgment ror reversal trial, is said agree new I do not with all in his dissent- For I add these com- reason few brief ing opinion. *31 ments.
The to admit into the refusal evidence composite police was, in error. Steiner opinion, sketch Officer my prejudicial testified that Tim Lee and were satisfied that Larry Hope the man accurately pictured the had seen composite they basis, on the that it should have admitted stairs. On been into and been made available cross-examina- evidence tion of these defense counsel. by witnesses defendant damaging
Even more and the prejudicial admit sketch the argu- the failure to the than in Justice Attorney ment the assistant State’s described There is no basis in the record absolutely Simon’s dissent. for the that the the attempted attacker assumption rape re- argument victim. That has been type inflammatory and for granting condemned is a sufficient basis peatedly a new trial. defendant on This conviction rests two and testimony boys is less than guilt a The evidence disputed fingerprint. and the errors were so prejudicial overwhelming, fair a trial. defendant was denied joins in this concurrence partial JUSTICE CLARK dissent. partial in SIMON, also and dissent- concurring part
JUSTICE in ing part: trial
I should receive a new believe the convic- dissent from the affirmance of accordingly tions. In to the which convinced majority, by contrast at I (98 529), of the evidence” Ill. 2d character “compelling close The evidence only placing find this to a case. very be two the crime comes from the defendant at the scene of the two identifications made by sources: the eyewitness stairs, finger- and the disputed the back coming up boys found on a radio. With so little evidence print supporting conviction, the exclusion of evidence on which casts doubt identification is far from credibility eyewitness Further, harmless. case, such a close any impermissible argument assumes prosecutor greater significance than it would in a case which the evidence overwhelm- ingly the defendant. implicated We have restated the standard for harmless er recently ***
ror. errors “Evidentiary can be harmless labeled only if admitted evidence is so properly that no overwhelming fair-minded jury could have voted to reasonably acquit defendant.” (People v. Carlson 440, 449; Ill. 2d see also Lindgren 79 Ill. 141.) The evidence in this case was not over contradictory, A whelming. combination of errors in the trial requires reversal of the conviction and a trial. new sketch composite police should have been admitted *32 to impeach the identifications. The eyewitness trial judge ruled the sketch to (98 be inadmissible Ill. hearsay 2d at 529), and thus never addressed the whether a question foundation proper had been laid for its admission. This was error. In People Rogers 571, this court held that a police composite sketch was not when hearsay offered to corroborate the in-court identification a wit by ness and when the witness was in court present and availa ble for cross-examination. The was treated as a composite prior identification and came within a ex long-recognized ception to the rule. As hearsay as the wit long identifying ness can trial, be cross-examined at the witness’ veracity can be tested and his demeanor observed the trier of by fact.
As the majority recognizes (98 Ill. 2d at the 527-28), same to the logic applies use of a sketch im composite a witness’ in-court peach identification. The reasons for the rule do not hearsay the apply since witness is available at trial for cross-examination. His can tested at veracity be time, and his demeanor can be observed the by jury. case,
In this the both witnesses who directed produc- tion of the sketch and the artist who drew the police sketch were at trial. available
The majority, however, addresses a concern in raised v. Schmitt 99 Ill. App. regarding of the foundation sufficiency before a sketch can required admitted for be impeachment The purposes. requirement imposed from majority “unequivocal testimony artist not was a drawing only represen tation at the prepared witness, direction of the but that the witness, after having had an to view the com opportunity sketch, pleted it adopted as an accurate of the portrayal (98 Ill. 2d at suspect.” 528.) course, Of witness must some indicate his way satisfaction with the sketch it before can be considered to be “his” identification. The majority not, does opinion however, how the explain witness must “adopt” sketch. there is some of error Clearly, margin in the Identi-kit process. While the witness cannot be held accountable for the artist’s or the inability limitations of the composite itself, method at the same time it would be unrealistic to the witness to state that the sketch require was a perfect likeness. Since the behavior of witnesses var ies, the foundation cannot in the requirements be satisfied same in each way case. The trial court will be required rule on the adequacy foundation on the facts of each case. refers to the “rule majority our emerging” ap
pellate (98 courts. Ill. 2d at 527.) This so-called rule is ap to the plied individual facts of case, each some of which are very different from the facts we face here. For exam *33 People v. Johnson in ple, Ill. App. foundation for the sketch could not laid be by questioning Johnson, both the witnesses and the artist. In the police artist could not recall the police circumstances surrounding the sketch, of the production and the victim did not testify and the the sketch to of the between any discrepancies however, case, In this both actual appearance. defendant’s the wit- the testified regarding the artist and witnesses with the sketch. nesses’ satisfaction or lack of satisfaction case failed is that the trial in this judge crucial point foundation; conviction to rule on the of the the sufficiency because, as the majority should be reversed for that reason concedes, in the to evalu- position the trial best judge of the identifica- testimony ate the differences between tion witnesses and the artist. police if there
The State’s that even had Attorney argues foundation, a sufficient error in to admit any failing been is harmless because oral was elic- composite testimony ited from the identification witnesses and the artist police out the differences describing composite pointing Lonnie Yates’ features and the features pictured between descrip- This assumes that oral composite. argument It is ex- tion is an substitute for a visual adequate display. nu- difficult to in words either the subtle tremely capture ances of a feature of an individual or the overall particular left as a whole. I impression viewed believe portrait that the fact, as the trier of should jury, be permitted make its own determination of how similar the sketch is to the defendant. the sketch that the witnesses Presenting saw to the so that the could consider the sketch jury, jury with the of the officer and of the together testimony witnesses, of the assessing credibility assists jury identifications. The can then decide how eyewitness jury identifications; much it can weight give eyewitness per- form that function if it sees the effectively only sketch. case,
In if the this members had seen jury sketch, that it would have observed showed a they light- man with wrinkles on his forehead and complected heavy no is dark has no mustache. Lonnie Yates complected, wrinkles, and after the incident had a shortly prominent moustache. The should have been allowed to consider jury
544 sketch, along with in the discrepancies witnesses’ ver- bal description Lonnie Yates’ actual appearance, the information provided by artist and the witnesses on stand, the witnesses’ demeanor, and all other infor- mation bearing on the witnesses’ Exclusion credibility. the sketch improperly prevented the from jury evaluating all of the evidence. Since the eyewitness identifications were in this extremely important case, my view is that the conviction should be reversed and defendant should receive a new trial at which the trial can judge rule whether a suf- ficient foundation for admission of the has composite been laid.
Because the has majority decided that there will no be new trial as to guilt, composite sketch should at least be admitted as evidence in the new sentencing hearing. The circumstances the case are surrounding con properly sidered as a factor in mitigation. Under section 1(e) of 9— the Criminal 1961, Code of evidence which is not admissi ble at trial can be considered in properly a sentencing hearing. (Ill. Rev. 1981, 38, Stat. ch. I par. 1(e).)As said 9— Szabo (1983), (Simon, J., 369 concurring), fundamental fairness that the requires defend ant receive every opportunity present relevant evidence to show he should why live. To defendant from preclude presenting this evidence would abe denial of the due proc ess guaranteed fourteenth amendment. Green (Cf. v. Georgia U.S. 60 L. Ed. 2d 99 S. Ct. (exclusion of reliable at death hearsay penalty pro ceeding was a due It process violation).) will be necessary much repeat for the testimony new sentencing I and believe jury, that the should be composite provided at that time.
The second ground for reversal is the im- prosecutor’s proper suggestion there closing argument was a sexual attack on the victim. There is no in the evidence re- cord to support argument that a sexual attack took it place. prosecutor defends as a natural inference from the evidence. That someone was heard screaming shortly discovered, before the body the victim had under her blood and that the fingernails, defendant had several recent scratches on his arm did not warrant the ar gument that there was sexual involvement. These facts are all consistent with a life and death struggle while the vic tim was repeatedly stabbed with scissors and hit with an *35 iron. The crime occurred in the and the morning, victim has last been seen a wearing nightgown. Although body, found, nude, when the victim have been may or dressing, either or entering from the emerging shower at the moment the assailant arrived. The ar prosecutor’s gument was totally speculative and could have served only to inflame the to jurors and unduly prejudice them against the defendant. It is for a improper prosecutor argue as sumptions statements of fact that are not in evidence. v. Beier (People 29 Ill. (1963), 511, 517.) Given the hei nous nature of the crime and the of evidence link paucity ing this defendant to it, the prosecutor’s remarks were particularly offensive and dangerous. I must
Finally, comment on the use of chal- peremptory lenges exclude a distinct and identifiable group quali- fied from jurors a petit The jury. practice was particularly in this egregious case. The used 13 of prosecution its 16 peremptory challenges to exclude black The persons. black prospective jurors excluded were of both sexes and repre- sented a wide range of income and educational Ex- levels. for their cept race, were they comparable to the jurors who served in this case. Of all chosen, the jurors one only black served on the He jury. was an individual who worked an as investigator Department Public Aid and well might be suspected by State to be a who person would favor the prosecution. follows majority Swain v. Alabama 380 202,
U.S. 759, 13 L. Ed. 2d 85 S. Ct. and requires the defendant show systematic exclusion blacks from the case after case. I whether jury question burden, ever meet this since defendant can only prose- has access to the information needed to prove sys- cutor exclusion. The defendant The prosecutor tematic black. here excluded entire black As virtually group jurors. People Gosberry I stated this (Simon, J., violates the defend- dissenting), procedure to a rights ant's under State Federal constitutions trial —and to of the laws. protection jury equal reasons, For the I concur in the conclu- although above the defendant should receive new sentencing sion I he a new trial. hearing, also believe should receive cons. (Nos. *36 v. CHICAGO Minor, RICKEY, Appellee,
ROBERT et al. Appellants. AUTHORITY TRANSIT 17, 1983. Opinion June filed